Citation Nr: 0924065
Decision Date: 06/26/09 Archive Date: 07/01/09
DOCKET NO. 06-31 633A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUES
1. Entitlement to service connection for a cervical spine
disability.
2. Entitlement to service connection for depression, to
include as secondary to a service-connected disability.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. Edwards, Associate Counsel
INTRODUCTION
The Veteran had active service from January 1963 to November
1966.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from a February 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Cleveland, Ohio. The Veteran now resides in Oregon, so the
matter is now handled by the RO in Portland, Oregon.
The Veteran requested a hearing before the Board. The
requested hearing was conducted in March 2009 by the
undersigned Veterans Law Judge.
The appeal originally included the claim for entitlement to
service connection for a lumbosacral strain. However,
service connection for a lumbar spine disability, was granted
in a May 2008 rating decision, and therefore is no longer
included in the appeal.
The issue of entitlement to service connection for
depression, to include as secondary to a cervical spine
disability is addressed in the REMAND portion of the decision
below and is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC.
FINDING OF FACT
A cervical spine disability is shown to be causally or
etiologically to an injury sustained during service.
CONCLUSION OF LAW
Service connection for a cervical spine disability is
established. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38
C.F.R. § 3.303 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Notify and Assist
As provided for by the Veterans Claims Assistance Act of 2000
(VCAA), VA has a duty to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38
C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)(2008). In this
case, the Board is granting in full the benefit sought on
appeal. Consequently, the Board finds that any lack of
notice and/or development, which may have existed under the
VCAA, cannot be considered prejudicial to the Veteran, and
remand for such notice and/or development would be an
unnecessary use of VA time and resources.
II. Entitlement to Service Connection for a Cervical Spine
Disability
Under the relevant laws and regulations, service connection
may be granted if the evidence demonstrates that a current
disability resulted from an injury or disease incurred or
aggravated in active military service. 38 U.S.C.A. §§ 1110,
1131; 38 C.F.R. § 3.303(a). In order to prevail on the issue
of service connection on the merits, there must be: (1)
medical evidence of a current disability; (2) medical, or in
certain circumstances, lay evidence of in-service occurrence
or aggravation of a disease or injury; and (3) medical
evidence of a nexus between the claimed in-service disease or
injury and the present disease or injury. Hickson v. West,
12 Vet. App. 247, 253 (1999).
Furthermore, in determining whether service connection is
warranted for a disability, VA is responsible for determining
whether the evidence supports the claim or is in relative
equipoise, with the Veteran prevailing in either event, or
whether a preponderance of the evidence is against the claim,
in which case the claim is denied. 38 U.S.C.A. § 5107;
Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is
an approximate balance of positive and negative evidence
regarding any issue material to the determination of matter,
the benefit of the doubt will be given to the Veteran. 38
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.
The Veteran is seeking entitlement to service connection for
a cervical spine disability. The Veteran asserts he injured
his cervical spine when he fell down a ladder during service.
Service connection for a lumbar spine disability, because of
that same ladder accident, was granted in a May 2008 rating
decision.
Service treatment records have been reviewed. The Veteran's
entrance examination from January 1963 did not indicate any
spine or other musculoskeletal abnormalities. In June 1964,
the Veteran was prescribed a muscle relaxer and instructed to
apply heat twenty minutes a day after falling down a ladder
and injuring his back. In September 1964, the Veteran again
complained of a backache, noting he had back pain for the
past one and a half years, but that after falling down the
ladder approximately three months prior, it had worsened.
The impression was a possible sacroiliac strain. He returned
in October 1964, with complaints of pain in the upper right
chest, with an impression of a possible osteochondral strain.
The following year, in October 1965, the Veteran complained
of back pain that was aggravated by standing, with no
radiation. He was diagnosed with a chronic back strain, and
sent for an orthopedic consultation. X-rays were within
normal limits although the views were light, and new oblique
and lateral views were ordered. The Veteran was returned to
full duty. In February 1966, it was noted that the Veteran
continued to have back pain and he was given an improvised
back splint. The Veteran returned in August 1966 with
recurrent back pain. It was noted that there was no change
in its status and the physician reported he could only elicit
pain by twisting the Veteran's trunk to the right and keeping
his feet still. The impression was no significant pathology,
with probable muscle strain. The discharge examination from
November 1966 did not report any spinal or musculoskeletal
abnormalities.
The Veteran testified during his March 2009 hearing that his
main complaints during service were for his lumbar spine
pain, but several days after the initial injury, he reported
having neck pain as well, and was informed that it was
probably bruised and would heal.
Post-service treatment records have also been reviewed. The
Veteran indicated during his March 2009 testimony that he has
received treatment during and after discharge from active
duty continuously. Some of the records from the period
immediately following service in the 1970's and 1980's have
been destroyed. However, the Veteran was able to procure a
statement from one of his treating physicians during that
time. In a June 2005 statement, Dr. H. stated he treated the
Veteran in the 1970's and 1980's. Although records had been
destroyed, Dr. H. recollected that he did treat the Veteran
for back and neck pain. VA outpatient records indicate the
Veteran has been treated for chronic neck pain. A VA
outpatient note from November 2004 indicated the Veteran has
had cervical pain for forty years. He is also currently
receiving pain management medication for his neck pain. In a
July 2006 letter for referral to an arthritis specialist, the
Veteran's VA physician stated the Veteran has severe
osteoarthritis involving his cervical and lumbar spine.
Additionally, a Magnetic Resonance Imaging (MRI) of the
cervical spine taken in 2000 showed degenerative disc disease
(DDD) and degenerative joint disease (DJD) of C5 through C7,
with foraminal narrowing. A plain x-ray of the cervical
spine in 2001 showed moderate DDD and DJD, and foraminal
narrowing. In addition, an MRI of March 2004 showed
degenerative changes in the mid and lower cervical spine with
foraminal stenosis C2 through C4 and C7 through T1, and
central canal stenosis C5 through C7.
The Veteran was afforded a VA examination of the spine in
April 2008. It was noted that the Veteran walks with a cane
and uses a Fentanyl patch for pain. The Veteran reported
that pain was consistent and persistent daily. Physical
examination centered mostly on the lumbar spine, and a
diagnosis of chronic lumbosacral strain superimposed on
degenerative changes by x-ray was given. The examiner opined
that it is difficult to say whether or not the Veteran's
disability was related to or a result of his military
service.
In February 2008, a private physician, Dr. L., reviewed the
Veteran's medical history, medical and treatment records, and
examined the Veteran. The Veteran reported that his cervical
pain was worse than his lumbar pain. Examination reviewed
minor tenderness at the cervicothoracic junction and ranges
of motion of the cervical spine were discomforting. The
Veteran was diagnosed with chronic cervical pain, with
radiographic evidence of moderate cervical degenerative
changes. The examiner stated that traumatic falls hasten
arthritic changes, and opined that the fall off the ladder
during service resulted in acute back pain that likely
contributed to arthritis of the neck and back.
Most recently, the Veteran had an additional review of his
records by a private physician in October 2008. The
physician, Dr. B., reviewed the Veteran's records and opined
that the Veteran likely injured his neck in the fall off the
ladder during service. The examiner supported this opinion
by referencing the service treatment records of October 1964
and August 1966, where the Veteran complained of unexplained
pain in the upper chest and in the left lower trapezius
region. The physician explained that cervical nerve roots
control those general areas.
Additionally, Dr. B. stated that a MRI scan of 2000 also
supports the finding that the Veteran injured his neck in
service as it shows a C4 to C7 multilevel neuroforaminal
narrowing that would be expected to develop from a fall that
occurred during the 1960's era, since it takes many years for
chronic bone changes to take place. The physician opined
that the Veteran's serious cervical myelopathy and hand and
arm numbness are likely due to the trauma the Veteran had
during military service. The rationale for this opinion was
that the Veteran entered service fit for duty, he likely had
a neck injury from the fall, he was likely treated for his
neck problems as early as the 1970's, as per the letter from
Dr. H., and it is known that such an injury, the fall off the
ladder, precipitates or accelerates the onset of the
degenerative process of the spine.
Other evidence of record shows that the Veteran started to
received social security benefits in 1998. The focus of much
of the social security disability decision is on the
Veteran's musculoskeletal pain, to include cervical pain,
which allegedly began in October 1998. This evidence is of
no significance, as it does not show when the Veteran's neck
pain or problem began; it only shows that he became disabled
from working in October 1998.
In sum, it is clear that the Veteran experiences a cervical
neck disability. The Board finds that the evidence is at
least in equipoise as to whether the Veteran's current
cervical neck disability is etiologically related to the
injury that occurred during active service. Upon resolution
of every reasonable doubt in the Veteran's favor, the Board
concludes that service connection is warranted for a cervical
spine disability.
ORDER
Service connection for a cervical spine disability is
granted.
REMAND
The Veteran is also seeking entitlement to service connection
for depression, to include as secondary to his service-
connected neck and back disabilities. During the March 2009
hearing, the Veteran testified that he received medication
for depression during service, and that he was depressed
because of his back and neck disabilities.
The Board finds that further development is necessary before
the claim can be adjudicated.
The VA has a duty to afford a Veteran a medical examination
or obtain a medical opinion when necessary to make a decision
on the claim. See 38 U.S.C.A. § 5103A(d). When the medical
evidence is not adequate, the VA must supplement the record
by seeking an advisory opinion or ordering another
examination. See McLendon v Principi, 20 Vet. App. 79
(2006).
VA outpatient records indicate the Veteran is currently being
treated for depression. Additionally, private doctors and VA
doctors have attributed the Veteran's depression to his
chronic pain, as seen in a VA outpatient record dated May
2004, and a statement by Dr. B., dated October 2008.
The Veteran has not yet been afforded a VA examination for
depression. A remand is necessary to afford the Veteran a VA
examination with a nexus opinion in order to ascertain
whether the Veteran's depression is secondary to his service-
connected disabilities.
Accordingly, the case is REMANDED for the following action:
1. Afford the Veteran a VA examination
for depression. Any and all indicated
evaluations, studies, and tests deemed
necessary by the examiner should be
accomplished. The examiner is requested
to review all pertinent records
associated with the claims file and offer
comments and an opinion addressing
whether it is at least as likely as not
(i.e., probability of 50 percent) that
the Veteran's depression had its onset
during service, or is proximately due to
or aggravated by any of his service-
connected conditions, specifically his
service-connected lumbar and/or cervical
spine disabilities.
All opinions should be supported by a
clear rationale, and a discussion of the
facts and medical principles involved
would be of considerable assistance to
the Board. The claims folder must be
provided to the examiner for review. The
examiner must state in the examination
report that the claims folder has been
reviewed.
The Veteran is hereby notified that it is
his responsibility to report for the
examination scheduled in connection with
this REMAND and to cooperate in the
development of his case.
2. After all of the above actions have
been completed and the Veteran has been
given adequate time to respond,
readjudicate his claim. If the claim
remains denied, issue to the Veteran a
supplemental statement of the case, and
afford the appropriate period of time
within which to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112.
______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs